Wednesday, 3 February 2016

Death of 14-year-old student: Police to review the way youth are questioned

By Calvin Yang, The Straits Times, 2 Feb 2016The police are reviewing their procedures for interviewing young persons after a 14-year-old boy fell to his death last week following questioning by the police.* Benjamin Lim case: What happened?A police statement yesterday said: "The police have been asked whether it should review the procedure to allow an appropriate adult to be present when a young person is interviewed. The police will review and address this issue."

Concerns have surfaced online following reports that the student was questioned by police at his school without his parents being present or aware of it.Police said officers went in plainclothes and unmarked cars - "to keep investigations discreet" - to his school on Jan 26 after a report of molestation was lodged the day before.Naming him for the first time in their statements, police said that after discussions with school officials, "Benjamin" was identified through closed circuit television records."He was brought to the principal's office by a school official and was spoken with in the presence of a police officer," police said.Before he was taken to the Ang Mo Kio division for more interviews, he called his mother to let her know what was going on.

The police said an officer also spoke to his mother. At the division, Benjamin was interviewed by an investigation officer at his workstation in an open office.

Benjamin was later released on bail and left the headquarters with his mother, said the police.According to media reports, he then went home to the family's 14th-floor flat in Yishun with his mother and sister. His mother said she found the window of his room open and rushed to the ground floor, to see him lying on the ground.

"Benjamin's passing was tragic," said the police, adding that they had met the family to address their questions and provide clarifications on the police officers' actions.

Schools have a set of guidelines, including contacting the student's parent or guardian before he leaves with the police, says MOE. http://str.sg/ZjFe PHOTO: SHIN MIN DAILY NEWS
Posted by The Straits Times on Tuesday, February 2, 2016

Death of 14-year-old: Experts welcome police review on procedures for questioning youthThose under age 16 should be treated as vulnerable members of society: Experts
By Kok Xing Hui, Ng Huiwen and Pang Xue Qiang, The Straits Times, 3 Feb 2016Social workers, lawyers and psychologists have welcomed a decision by the Singapore Police Force to review its procedures when interviewing a minor.It comes after a 14-year-old boy called Benjamin was found dead at the foot of his Housing Board block in Yishun on Jan 26, 90 minutes after being released from Ang Mo Kio Police Division, where he was questioned regarding an alleged molestation case.No adult was present at his interview as there is no legal requirement for that in such cases here.

But in Britain and parts of Australia, officers must find an "appropriate adult" - a parent, guardian or social worker - to sit in during the questioning of a person under 18.

In response to public concern following the teenager's death, the police said on Monday that they will review the procedure to allow a grown-up to be present in such cases in future.Benjamin's father told The Straits Times that his wife received a call from their son to say he was being taken from school to the police station.

The police said they sent plainclothes officers and unmarked cars to pick up Benjamin from school "to keep investigations discreet".

Benjamin's father said that when his wife picked the boy up from the station, "his hands were freezing, he kept to himself, he was quiet".

"We knew that he didn't feel too good," he said.

Social workers and lawyers believe that youngsters under 16 should be treated as vulnerable members of society.

The Association of Women for Action and Research said the case "raises troubling questions about the treatment of minors who come into contact with the criminal justice system".

Dr Carol Balhetchet, senior director for youth services at the Singapore Children's Society, said: "Children below 16 are an especially vulnerable group. We should always seek professionals who are trained to handle children. The children should not be handled like adults, and intervention should be done in a more delicate manner."

Criminal lawyer Sunil Sudheesan believes the appropriate adult should not be a parent but an "independent person" whose job is to prevent each side from making "frivolous accusations" about the other.

"This is the standard problem we have in terms of police investigations. We don't have an independent source of what goes on inside the room."

Former policeman Lim Ah Soon, 70, believes parents should not be present at interviews. "Children may tend to be more defensive when their parents are around. Similarly, the parents would be protective of the child."

Dr Munisada Winslow, senior consultant psychiatrist at Promises Healthcare, Novena Medical Centre, suggested having a counsellor or a trained officer help the minor after a police interview.

Experts also suggested that interviews with minors be recorded on film and that youngsters should be granted access to legal help.

In Singapore, only people with intellectual or mental disabilities are allowed an appropriate adult during investigations.

A Ministry of Education spokesman said that while schools have an obligation to cooperate with the police, they also have a duty of care to students. He said schools have a set of guidelines, including speaking to the student and contacting his parents or guardian first, before he can be taken away by the police.A spokesman for the secondary school involved has confirmed that the police and student had both spoken to a parent over the phone. "We noted from the conversation that the parent would be going to the police station. Throughout the process, we were mindful that as a young student, he would be frightened and we strove to give him as much emotional support as possible."Teen's suicideSchool and police protocols under spotlight
By Seow Bei Yi, The Sunday Times, 7 Feb 2016What should schools do when police arrive to take in a student for questioning? And should police be allowed to question minors alone?These issues have come under the spotlight since the death of a 14-year-old boy after he was picked up from school by police and then arrested for allegedly molesting an 11-year-old.Last week, his father wrote an open letter detailing what happened the day Benjamin fell from the 14th floor of their flat in Yishun. "The school, in my opinion, should never have handed over my son to five police officers during recess hours without having to wait for the arrival of family members," he said in the letter.THE SCHOOL'S ROLEOn Jan 26, police officers arrived at Benjamin's secondary school. The boy, who was in Secondary 3, was taken to the principal's office after he was identified from CCTV footage of the alleged suspect, and then taken away for further questioning.According to Benjamin's father, his wife first found out about the incident when she received a call from her son's mobile phone.A police officer explained that Benjamin was being investigated for a case of "outrage of modesty" which occurred outside school in the afternoon of Jan 25.The officer added that Benjamin would be taken to Ang Mo Kio police station for further investigation. She was also allowed to speak to her son. According to his father, Benjamin's mother then "rushed to the school" only to find out that the boy had already left with officers.Some parents have wondered if this is the right protocol.Madam Agnes Ang, a 49-year-old commercial manager who has three sons aged 14 to 21, said: "The police should wait for parents to arrive before taking their child to the police station."IT engineer Jason Tay, 47, whose two children are aged 14 and 11, said: "I wonder why the school allowed the police to take the boy away without his parents' approval."The Ministry of Education (MOE) last week explained that schools have a set of guidelines "which corresponds to the police's guidelines on working with minors".The school will speak to the student before the police do, and the parent or guardian will be contacted before the student leaves with the police. "While the student is assisting in police investigations, the school will continue to keep in contact with the student and the parent or guardian to render the necessary support," it added.A former vice-principal of a secondary school, who declined to be named, told The Sunday Times that schools have to cooperate with the police in such cases, and the standard practice is for schools to inform parents when their child is being taken away by police. "In this case, it sounds like the school tried to contact the boy's parents through his own mobile phone," he said.He explained that the school would usually be notified by police a few days after an arrest, and asked for a report on the student, including his attendance, conduct and counselling reports."Whoever is taking care of the child should be the party informing the child's parents in such cases," said Dr Carol Balhetchet, a clinical psychologist and senior director for youth services at the Singapore Children's Society. This is because they can act as a bridge to let parents know what is going on.POLICE QUESTIONINGBenjamin's parents have also raised another issue: Why was his mother not allowed to see him in the station until police were ready to release him on bail.While Singapore's Children and Young Persons Act legislates for how those below 16 should be treated by the courts, there is no specific section on how police investigations of juveniles should be carried out. But a 2003 report by Singapore to the United Nation's Committee on the Rights of the Child made it clear that "the arrest, detention or imprisonment of juveniles are measures of last resort"."When a juvenile below 16 years old is arrested for any offence, his/her parents will be informed of the arrest and requested to go to the police station. The investigation officer has to complete his preliminary investigations in four hours and release the juvenile on bail to the custody of the parents."But in Britain and parts of Australia, officers have to find an "appropriate adult", such as a parent, guardian or social worker, to sit in when questioning a person under 18.Dr Balhetchet said the presence of a trained professional, such as a counsellor or social worker, during the interview could comfort both the child and parent, helping to "contain the situation"."It is important to make them feel safe, comfortable, and not as if they have to give you the answer they think that you want," she said.Madam Adeline Chung, 45, a housewife and mother of three children aged 10 to 15, supports the idea of having an adult such as a trained volunteer to look out for the child's welfare during questioning, although having a parent there may interfere with investigations.Videotaping interviews will also "provide an independent, objective insight" as to what went on during the questioning, said criminal lawyer Sunil Sudheesan. It will also ensure that neither party can make "baseless allegations".Last July, the Ministry of Home Affairs said it will pilot the videotaping of interviews during investigations in the first quarter of this year.Others have suggested that the police set up a special unit trained to deal with juveniles, the way the the court system here has its Youth Court.After Benjamin's death, the police have said they will review their processes.Retired police force superintendent Lee Swee Thin believes the police are following the right protocol. Suspects should not be allowed to speak to their parents as it might influence investigations, he said. And having a third party could raise concerns about confidentiality."We must be fair to both parties," he said, referring to the victim of any alleged crime. While the police have to exercise care when dealing with young suspects, family members of victims of crimes also expect them to get to the bottom of the case.Mourning the loss of his son, whose death is now the subject of a coroner's inquiry, Benjamin's father told The Sunday Times:"We are still trying to cope and we are deeply encouraged by the strong support from members of the public."Additional reporting by Amelia Teng and Dominic Teo

Law Society sets up panel to study investigation protocols for young suspectsLaw Society sets up committee following death of teen who was questioned by policeBy Kok Xing Hui and Janice Tai, The Straits Times, 16 Feb 2016The Law Society of Singapore has set up a special committee to look at investigation protocols for young suspects after a teenager's death following police investigations."The recent tragic case of 14-year-old Benjamin has highlighted the issue of investigation protocols, especially in the case of young offenders or suspects," Mr Wendell Wong, co-chairman of its criminal law practice committee, wrote in an e-mail to criminal lawyers yesterday to announce the move.He will chair the special committee, which will engage the Ministry of Home Affairs and Attorney- General's Chambers.The teen fell to his death from his flat on Jan 26, after he was picked up from school by the police and questioned at a police station over an alleged molestation. The case has led to public discussions over whether a minor should have an adult with him during police investigations.The Straits Times understands the 10-man special sub-committee adds to the existing criminal law practice committee, which regularly engages the authorities on issues such as early access to lawyers.

National University of Singapore associate law professor Chan Wing Cheong, one of the 10, said the case has shown the urgency of looking into aspects affecting the vulnerable, as tragic outcomes may result.Mr Peter Ong, director of Templars Law LLC, who is also on the new committee, said he would like the Appropriate Adult Scheme, currently applicable to those with intellectual or mental disability, to be extended to children under 16.In countries such as Britain, an "appropriate adult" - a parent, guardian or social worker - must sit in when the police question minors.Other members on the new committee - which has yet to meet - include lawyers Amolat Singh, Suresh Damodara and Satwant Singh.Mr Amolat Singh said: "There is a lot of public interest and a lot of disquiet in this case." He said the committee would have to wait for the coroner's inquiry to establish facts of the case - such as whether Benjamin's parents were contacted.Criminal lawyers welcomed the committee. Mr Laurence Goh hopes one of its recommendations will be the Appropriate Adult Scheme. "At least then the minor will feel assured and wouldn't be as intimidated."Acting president Sunil Sudheesan of the Association of Criminal Lawyers Singapore (ACLS) said he was glad about the new committee. "The ACLS stands shoulder to shoulder with the Law Society on this."Vulnerable suspects and their access to counselBy Thio Shen Yi, Published The Straits Times, 20 Feb 2016

On Monday, Jan 25, Benjamin Lim, a 14-year-old Secondary 3 schoolboy, allegedly followed a girl into a lift and molested her. On Jan 26, plainclothes policemen visited his school and spoke to him in the principal's office. He was then taken by these policemen to Ang Mo Kio Police Division and interviewed by an investigating officer at a workstation in an open office.While his mother had been very briefly informed of some basic facts over the phone, no parent, guardian or lawyer was present with him at the interview. We do not at this point know what was said or explained to him, or whether he received a Pamphlet Of Rights. According to the police, he was released on bail into his mother's custody at around 2.50pm after an interview of about two hours, and had not "exhibited any signs of being unduly distressed". Benjamin and his mother returned home to their 14th-floor family flat in Yishun, and he went into his room. He was found dead that same day at 4.20pm, at the foot of their block of flats.Why did he jump? Could his death have been prevented? We can never know for certain, but that shouldn't stop us from pursuing a deeper inquiry into what happened to Benjamin that day.The obvious issue is why weren't the parents allowed to be present during the interview? The simple answer is that there is no legal requirement for parents to be present in the interview room when a minor is involved.Mr Lionel de Souza, ambassador for the National Crime Prevention Council, justified the rationale for this: "A police investigation is about searching for the truth. Having a parent in the same room with the accused would hamper this search, because they will not be neutral parties."

I beg to differ. That cannot be correct. This is precisely the same attitude of mind that proscribes a regime allowing immediate access to counsel.

In his comments to the media about this case, Mr Amolat Singh, a veteran criminal lawyer, said: "Children are very vulnerable. If teachers and principals can terrify a child, how do you think they would react to a police officer?" He has a point.

A stressful interrogation can extract what the interrogator is looking for, which may, or may not, be the truth. There are plenty of empirical psychological studies that strongly suggest that people of sound mind and temperament can be made to confess to something that they didn't do. The police could have considered a less intimidating way of approaching the investigation. Even if an offence is arrestable, arrest is not mandated and the police need only do so if appropriate - so was it appropriate to arrest this 14-year-old boy at school during school hours?

Instead of detaining or arresting Benjamin at school, the police have the power under the Criminal Procedure Code to require a person to attend and be examined, and it is not uncommon practice for the police to contact a suspect/witness by phone and ask him to attend an interview. To be fair, the police have said they "will review and address the issue".

But are they just going to look at this particular issue, or will this be a catalyst for broader reform? Also, how transparent will this review be?

In considering our options, let me ask a question that has been posed to me as a thought experiment: If Benjamin had had a lawyer present to give advice during the course of the interview, would things have turned out differently? As I said earlier, we will never have certainty, but it is not impossible to imagine a different outcome, and if that is possible, then one more question: How then should we act?

I continue to believe that near immediate or, at worst, early access to counsel is a necessity in ensuring sustainable confidence in our criminal justice system. I have referred to it as a "positive externality". This is a position that a large majority of the Bar take.

While we accept the need for effective investigations, and that it is a balance between police effectiveness and protection for an accused, this incident forces us to contemplate the potentially catastrophic cost of getting the balance wrong. We at the Bar have always been prepared to compromise, take realistic incremental steps forward and accommodate the concerns of the authorities.

We have proposed a one-hour private meeting between accused/suspect and lawyer before any statements are taken. But this has never detracted from our aspiration of seeing our criminal justice regime develop a fair but rational early access to counsel doctrine.

It cannot be the case that our well-trained, well-resourced, First World police force will be stymied in their investigations by something as anodyne as the presence of parents or lawyers. Perhaps the time is right to fast forward this discussion and reboot our thinking.

A short recap. Article 9(3) of the Constitution gives an arrested person the right to be defended by counsel. However, the Courts have held that this is not a right of immediate access, but a right to consult counsel within a "reasonable" time as the police need time and space to conduct investigations effectively. That is the crux of the problem. The idea of "reasonableness" is elastic. What balance do we strike? Is it fair to the arrested person or suspect if they can talk to a lawyer only days (or a couple of weeks) after the investigation?

Intimidation, coercion or psychological manipulation can come in many forms, is often subtle, and may even be unintentional. In the context of an investigation by the police, which is inherently stressful, surely every suspect is vulnerable? The precise level of vulnerability is just a matter of degree. This must ultimately devalue the reliability of the statements (let alone confessions) given under those circumstances.

The trial should not start, and for all intents and purposes end, at the police station.

What happens in other jurisdictions around us? A selective survey follows:

- In Malaysia, the police must inform the suspect of his right to counsel before any questioning commences or before any statement is recorded. The police officer must allow the suspect to consult a lawyer or attempt to consult a lawyer "as soon as may be". To this end, I understand that our counterparts at the Malaysian Bar Council have a team of "on-call" rostered lawyers prepared to provide immediate access at short notice pro bono. The questioning or recording of statements may only take place "a reasonable time" after communications have been made or attempted.

- In Hong Kong, a suspect's right to counsel is not absolute. However, that suspect must be given an opportunity to seek legal representation. A senior police officer may delay access to counsel when he has (subjective) reasonable grounds to believe that such access may interfere with the investigation of that offence. This is a limited right of delay as the suspect must be charged or brought before a magistrate 48 hours after apprehension, both of which trigger a right to counsel.

- In India, the Supreme Court case of D. K .Vasu v State of West Bengal set out guidelines that the police have to follow when detaining or arresting suspects. The suspect is entitled to meet, communicate and consult with his lawyer during interrogation, although not throughout the interrogation.

- In Taiwan, the Code of Criminal Procedure stipulates that the maximum period of detention is 24 hours. Suspects must be told during an "examination" or interview that they are entitled to retain a defence attorney. The police must wait four hours for a defence attorney to show up, and should not interrogate the suspect during this period: Article 93-1. Failure to comply with this provision has led to confessions made during this period in the absence of an attorney being excluded from evidence.

While there are obviously many approaches to finding a balance between investigative efficacy and dealing fairly with accused persons, it is clear that, at least on paper, Singapore is an outlier in the way we emphasise efficacy over protection. These are of course the formal rules and procedures, and the levels of compliance on the ground may differ, and may be more honoured in the breach than in the observance.

Notwithstanding the degree of effectiveness in the jurisdictions mentioned, they are rights which can be enforced, and rights that hold the investigators to a set of standards where failing to comply has actual legal consequences.

I dare say that in this area, we have yet to find our equilibrium.

Unsurprisingly, as a lawyer, my approach is driven from the perspective of allowing early access to counsel. This is the "gold standard", and the simpler and most effective solution.

The experience of other legal jurisdictions which allow the early or immediate availability of legal advice contains lessons for us.

Early access to counsel in Singapore will address many of the concerns faced when dealing with young or vulnerable suspects, and they certainly address the larger picture of developing a process where we can safely rely on the fairness of the convictions, and acquittals, that the criminal justice system metes out.

We eliminate or minimise disputes over the statement-taking process, the admissibility of confessions, the pressuring of witnesses, the likelihood that star witnesses or accused persons resile from their statements.

Obviously, with young suspects, immediate access to counsel may not be the only viable solution, though it may be the best one from the Bar's point of view. There are other intermediate protections, such as allowing parents or guardians to be present, or adapting the present Appropriate Adults Scheme.

Very often, there are good ideas, and a willingness on the part of the senior leadership to accept these ideas in principle. But good ideas don't always get implemented effectively. There can be a lag between the acceptance of an initiative and the reality of application on the ground.

Recently, I was discouraged to learn that checks were made in various police precincts about whether suspects were getting access to the Pamphlet Of Rights.

It turned out that some investigating officers had never heard of it; these pamphlets were unavailable in a number of land divisions, and not available in the lockups where they were most needed.

We have raised these issues, and I am sure they will be fixed over time, but my overarching point is that the inertia of "this-is-how-we- always-do-things" is difficult to overcome, and the imperative to accelerate discussions on how to deliver timely legal advice to suspects (whether via access to counsel, a guardian or a pamphlet) must intensify.

If Benjamin's death was avoidable with a better system in place, then it is one death too many. But it is not just about Benjamin.

Does the investigative process unintentionally cause avoidable psychological trauma and long-term distress? Does it lead to over-punishment due to confessions which are un-ameliorated or un-mitigated due to lack of knowledge or advice from counsel?

That confessions can be challenged in voir dire is not a sufficient answer (and it would be interesting to find out how many voir dire challenges actually succeed, and how much judicial time they take). Voir dire refers to a mini-hearing held during a trial on the admissibility of contested evidence.

The law should only go as far as punishing the guilty for that specific crime, no more, no less, regardless of age, gender or other factors. This Law Gazette message is very much a personal view, and as much from the heart as it is from the head; but it ought not to be any less legitimate, or less rational just because it is not based solely on cold, unemotional logic.

The criminal justice system should win over hearts and minds, it should not elicit a resigned response that the odds are irretrievably stacked against the accused. The role of the Bar, as stakeholders in the criminal justice system, is to give our clients, and victims, a sense of confidence, to tell them that they can trust the system, it is not perfect, but it is largely fair and transparent, and is ultimately aimed at generating just outcomes.

Can we at the Bar genuinely say that yet? We can do better. We must do better. And we should do it together.Thio Shen Yi, a senior counsel, is president of The Law Society of Singapore. This article was first published in the February issue of the Singapore Law Gazette.